Scherf lawyers in fight for his life

EVERETT — Byron Scherf’s lawyers are obligated to make every effort to save his life.

Karen Halverson and Jon Scott began fighting for their client long before his trial started earlier this week.

Days before he was charged with aggravated murder the pair filed a civil lawsuit, seeking an injunction against Snohomish County Prosecuting Attorney Mark Roe. The lawsuit asked a judge to delay Roe from swiftly filing a notice to seek the death penalty.

The defense argued that Roe didn’t afford them enough time to adequately investigate and prepare documentation that might convince the prosecutor that their client deserves leniency. Two years later, they are still saying the same thing.

Scherf, 54, is accused of ambushing Monroe corrections officer Jayme Biendl on Jan. 29, 2011, inside the prison chapel at the Washington State Reformatory. Biendl, 34, was strangled with an amplifier cord. The convicted rapist serving a life sentence told investigators he killed Biendl because he was enraged over something she said.

In opening statements on Wednesday, Scott didn’t deny that Scherf killed Biendl. He suggested, however, that there is reason to doubt allegations that Scherf plotted the slaying.

“It is a question of if he planned to do it or if he was overcome,” Scott said.

Testimony in the trial continued Friday. Corrections Lt. Jose Briones returned to the witness stand to explain where Scherf was housed after he was found outside the chapel. Officers, believing he tried to escape, moved him to maximum security unit. After Biendl’s body was found, they moved him away from other inmates, locking him a cell in the hospital ward. Two officers were assigned to keep a log of Scherf’s movements and behavior during a suicide watch. The inmate had told a nurse he was having thoughts of harming himself, although no plan.

The nurse told jurors she examined an injury on Scherf’s finger. He told her he was bit. She said Scherf was alert, cooperative and calm. His blood pressure was normal.

Troy Hansen, assigned to watch the inmate, told jurors Scherf came to the front of his cell the next morning. He knocked on the glass, signaling that he wanted to talk.

Hansen, a mechanic at the prison, had known the inmate for about five years.

“‘I’m sorry,’” Hansen quoted Scherf saying.

Scherf’s face was red. He had tears in his eyes, Hansen said.

The defense on Friday successfully fought to have the jury see the videotape of Scherf being moved to the hospital ward. Scott told the judge the video goes to Scherf’s state of mind and “what he was going through.”

The defense has argued that the conditions of Scherf’s confinement played a role in why he later confessed to detectives.

On the video, jurors saw Scherf about three hours after Biendl was killed. He was being strip-searched, shackled, handcuffed and led back to the reformatory. The inmate kept his head bent down. Two officers gripped his shoulders and elbows. Corrections officers gave him orders as they moved him but said nothing else.

Once inside his cell, Scherf was seen lying down, covering his face with the smock he’d been given to wear.

Scott elicited testimony from corrections officers, indicating that Scherf was isolated, unable to write or make a phone call. He briefly spoke with an attorney through his cell door.

Halverson and Scott both have years of courtroom experience — a requirement to represent Scherf.

In 1997, the state Supreme Court started requiring any defendant facing a possible death sentence be appointed two lawyers. The attorneys must meet certain requirements, showing they are committed and able to provide quality representation. They also must be educated on case law regarding capital punishment and at least one must be deemed “death penalty qualified” by the state Supreme Court.

In the more than two years it has taken to bring Scherf to trial, the defense has filed about two dozen motions and a handful of appeals to the state’s higher courts. They have fought against the release of public records, including their client’s confession and a letter he sent the prosecutor’s office, saying he didn’t plan to fight the death penalty. They persuaded a judge to allow Scherf to wear a suit at every pre-trial hearing and forced the redaction of certain portions of the charging documents they considered prejudicial. They asked for more time to prepare, pushing back the trial over the objections of the prosecutors.

And early on they began fighting Roe’s decision to seek Scherf’s execution. Their first motion to strike the death penalty as possible punishment came in May 2011. They argued that Roe ran afoul of state law when he announced plans to seek the death penalty the day before Scherf was arraigned.

In July 2011, the defense asked the judge to compel Roe to turn over what information he used to decide why he didn’t think Scherf deserved leniency. Superior Court Judge Thomas Wynne denied the motion. A few weeks later, they called for the veteran judge to step down from the case, saying Wynne was biased against Scherf and favored prosecutors.

Wynne refused, but the defense launched two more attempts in early 2012 to boot the judge from the case. The third request was filed by Seattle attorney James Lobsenz, one of the state’s most experienced attorneys on death penalty appeals. About a week later, Wynne agreed to walk away, saying the repeated challenges to his fairness would mean costly delays. He also insisted he’d been fair to Scherf.

In March, the defense team took another run at striking the death penalty as a possible punishment. They once again accused Roe of attempting to put Scherf on a fast track to a guilty plea and receive a death sentence before his lawyers even had the opportunity to begin exploring a meaningful defense or potential grounds for leniency.

They cited recent decisions reached in two King County capital punishment cases. Judges there sided with defense attorneys who raised challenges similar to those brought by Scherf’s lawyers about how prosecutors decided to seek the death penalty.

Superior Court Judge George Appel denied the motion, saying that the defense failed to show that Roe abused the discretion reserved for prosecutors under the law. Halverson and Scott once again asked the state Supreme Court to review the trial court’s decision. No ruling is expected until long after the trial is over.

If Scherf is convicted and sentenced to death, there will be a mandatory review by the state Supreme Court.